Simpson v. Simpson (2010)

In Simpson v. Simpson, the Arizona Court of Appeals reversed the family court’s decision not to order retroactive child support back to the date the divorce petition was filed.

Mother filed for divorce in June 2008. The family court entered its orders after a trial in April 2009. The decree ordered Father to pay child support to Mother, but the family court declined to award child support retroactively because neither party specifically requested it. Mother appealed.

On appeal, Mother argued that A.R.S. § 25-320(B) requires family courts to order child support retroactive to the date the petition was filed when initially creating a child support order.

The record reflected that Mother filed for divorce using a self-service form available on the Superior Court website. The form provided no option to request retroactive support. Separately, Mother filed a motion for temporary orders where she requested child support pursuant to the Arizona Child Support Guidelines

While the Court of Appeals noted that Mother’s motion for temporary orders constituted a request for retroactive child support, such a request is not required by A.R.S. § 25-320(B), which provides:

If child support has not been ordered by a child support order and if the court deems child support appropriate, the court shall direct, using a retroactive application of the child support guidelines to the date of filing a dissolution of marriage, legal separation, maintenance or child support proceeding, the amount that the parents shall pay for the past support of the child and the manner in which payment shall be paid, taking into account any amount of temporary or voluntary support that has been paid. Retroactive child support is enforceable in any manner provided by law.

Whereas 25-320(A) and 25-320(C) use the word “may” to give family courts discretion in those respective provisions, this section instead uses “shall.” Additionally, this section contains no requirement that a parent must specifically request retroactive child support. The Court of Appeals remanded the issue back to the family court to calculate and award retroactive child support.